This
matter is before the Court on Plaintiff Mt. Hawley Insurance
Company's (“Mt. Hawley”) motion for summary
judgment. (ECF No. 29.) In its motion, Mt. Hawley contends
that it has no duty to defend Defendant Aquasol Condominium
Association, Inc. (“Aquasol”) in a breach of
contract and negligence claim brought by a condo owner,
Defendant Lucrezia Davidson (“Davidson”), against
Aquasol. Mt. Hawley maintains that the following three
exclusion provisions in the insurance policy (“the
Policy”), purchased by Aquasol, relieve Mt. Hawley of
any duty to defend: (1) the Association Members Cross
Liability Exclusion; (2) the Breach of Contract Exclusion;
and (3) Mold, Mildew, Fungus, or Bacteria Exclusion. The
Court finds that Mt. Hawley does not have a duty to defend
Aquasol based on the Association Members Cross Liability
Exclusion (“the Cross Liability Exclusion”),
therefore, the other two exclusions- and any arguments
pertaining to them-will not be addressed by the Court. Upon
review of the record, the parties' briefs, and the
relevant legal authorities, the Court grants
the Plaintiff's motion for summary judgment (ECF
No. 29).

I.
Background

Mt.
Hawley seeks declaratory judgment on the issue of whether it
has a duty to defend and a duty to indemnify Aquasol in an
underlying state court action. (First Amended Complaint, ECF
No. 23.) In the underlying Florida state court lawsuit,
Davidson, a condominium unit owner at Aquasol, sued Aquasol
under breach of contract and negligence theories for alleged
damages sustained in the aftermath of Hurricane Irma.
(Id. at ¶ 13.) Davidson has been the owner of
Unit 14D at Aquasol since April of 2013. (Id. at
¶ 4.)

Mt.
Hawley issued a Commercial General Liability
(“CGL”) insurance policy to Aquasol, effective
for the policy period from June 10, 2017 through June 10,
2018. (Id. at ¶ 9.) The Policy includes
Endorsement CGL 472 (02/16), Association Members Cross
Liability Exclusion, which provides in pertinent part:

This
endorsement modifies insurance provided under the following:

COMMERCIAL GENERAL LIABILITY COVERAGE FORM

This insurance does not apply to “property
damage” or “personal and advertising
injury” for any claim or “suit” made by or
brought on behalf of an “association member”
against any Insured including, but not limited to any
“employee” or “executive officer” of
the Named Insured or any other “association
member.”

For purpose of this endorsement, “association
member” means an owner or member of the homeowners or
condominium owners association identified on the Declarations
as the Named Insured.

(Id.) On or about April 27, 2018, Davidson, through
legal counsel, advised Aquasol in writing that Davidson was
making demand upon Aquasol for damages. (Id. at
¶ 13.) Specifically, Davidson asserted that her property
sustained damage due to Hurricane Irma, Davidson notified
Aquasol of the damage, Aquasol retained companies to fix the
damage, and these companies damaged Davidson's property
and failed to remediate mold. (Id.)

On or
about May 30, 2018, Aquasol, through its representative,
submitted a General Liability Notice of Occurrence/Claim to
Mt. Hawley, along with the Davidson claim notice, seeking
insurance coverage from Mt. Hawley for Davidson's claimed
loss. (Id. at ¶ 15.) Subsequently, on June 7,
2018, Davidson filed a lawsuit against Aquasol, in the
Circuit Court of the Eleventh Judicial Circuit in and for
Miami-Dade County, Florida, Civil Division, No. 18-19432 CA
01 (the “Davidson lawsuit”). (Id. at
¶ 17.) After the Davidson lawsuit was filed, Aquasol
made demand of Mt. Hawley for defense and indemnification of
the matter. (Id. at ¶ 18.)

Mt.
Hawley maintains that there is no duty to defend or to
indemnify Aquasol under the Policy because Davidson's
claims are excluded by Endorsement CGL 472 (02/16), the
Association Members Cross Liability Exclusion; Endorsement
CGL 365 (10/15), the Mold, Mildew, Fungus or Bacteria
Exclusion; Endorsement CGL 350 (08/09), the Breach of
Contract Exclusion; and/or Endorsement CGL 366(02/05), the
Continuous or Progressive Injury and Damage Exclusion.
Defendants maintain that there is a duty to defend, a duty to
indemnify, and coverage for the Defendants under the subject
insurance policy notwithstanding the referenced policy
endorsements.

II.
Legal Standard

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Summary
judgment is proper if following discovery, the pleadings,
depositions, answers to interrogatories, affidavits and
admissions on file show that there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Fed.R.Civ.P. 56. In
reviewing a motion for summary judgment, the Court must
&ldquo;view the evidence and all factual inferences therefrom
in the light most favorable to the non-moving party, and
resolve all reasonable doubts about the facts in favor of the
non-movant.&rdquo; Feliciano v. City of Miami Beach,
707 F.3d 1244, 1247 (11th Cir. 2013) (quoting Skop v.
City of Atlanta, Ga., 485 F.3d 1130, 1143 (11th Cir.
2007)). So, when a conflict arises between the facts
...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.